Opinion
No. 2023-03142 Index No. 714703/20
11-13-2024
Aurora Loan Services, LLC, plaintiff, v. German Moreno, et al., defendants; Palm Avenue Hialeah Trust, etc., nonparty-appellant.
Ross Eisenberg Law PLLC, Cedarhurst, NY, for nonparty-appellant.
Ross Eisenberg Law PLLC, Cedarhurst, NY, for nonparty-appellant.
VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, LINDA CHRISTOPHER, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, Palm Avenue Hialeah Trust, as successor in interest to the plaintiff, appeals from an order of the Supreme Court, Queens County (Laurentina S. McKetney Butler, J.), entered December 2, 2022. The order denied that branch of the motion of Palm Avenue Hialeah Trust which was for leave to renew those branches of the motion of S.C. Park Lane II, LLC, as successor in interest to the plaintiff, which were for leave to enter a default judgment against all the defendants except for the defendant German Moreno and for an order of reference, which had been denied in an order of the same court (Janice A. Taylor, J.) dated December 21, 2021, and, in effect, denied that branch of the motion of Palm Avenue Hialeah Trust which was pursuant to CPLR 1018 to substitute it as the plaintiff.
ORDERED that the order entered December 2, 2022, is modified, on the law, by deleting the provision thereof, in effect, denying that branch of the motion of Palm Avenue Hialeah Trust which was pursuant to CPLR 1018 to substitute it as the plaintiff, and substituting therefor a provision granting that branch of the motion; as so modified, the order entered December 2, 2022, is affirmed, without costs or disbursements.
In this action to foreclose a mortgage, Palm Avenue Hialeah Trust (hereinafter Palm Avenue), as successor in interest to the plaintiff, moved for leave to renew those branches of the motion of S.C. Park Lane II, LLC, as successor in interest to the plaintiff, which were for leave to enter a default judgment against all the defendants except for the defendant German Moreno and for an order of reference, and pursuant to CPLR 1018 to substitute Palm Avenue as the plaintiff. The Supreme Court denied that branch of the motion which was for leave to renew and, in effect, denied that branch of the motion which was pursuant to CPLR 1018 to substitute Palm Avenue as the plaintiff. Palm Avenue appeals.
A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination (see id. § 2221[e][2]) and shall contain reasonable justification for the failure to present such facts on the prior motion (see id. § 2221[e][3]). "The new or additional facts either must have been not known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion" (Ok Sun Chong v Scheelje, 218 A.D.3d 691, 692 [internal quotation marks omitted]; see P.J. 37 Food Corp. v George Doulaveris & Son, Inc., 189 A.D.3d 858, 859). "While it may be within the court's discretion to grant leave to renew upon facts known to the moving party at the time of the prior motion, a motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. Thus, the court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion" (Seegopaul v MTA Bus Co., 210 A.D.3d 715, 716; see Bank of N.Y. Mellon Trust Co., N.A. v Talukder, 176 A.D.3d 772, 773-774). Mere neglect is not accepted as a reasonable excuse (see Ok Sun Chong v Scheelje, 218 A.D.3d at 692).
Here, the Supreme Court providently exercised its discretion in denying that branch of Palm Avenue's motion which was for leave to renew. Palm Avenue failed to provide a reasonable justification for the failure to submit the purportedly new evidence on the prior motion (see id.; Dupree v Westchester County Health Care Corp., 164 A.D.3d 1211, 1214).
However, the Supreme Court should have granted that branch of Palm Avenue's motion which was pursuant to CPLR 1018 to substitute it as the plaintiff. In support of its motion, Palm Avenue submitted an assignment of mortgage dated December 2, 2021, which assigned the mortgage to it (see id.; Austin 26 Dental Group, PLLC v Sino Northeast Metals [U.S.A.], Inc., ___ A.D.3d ___, 2024 NY Slip Op 04187 [2d Dept]).
Palm Avenue's remaining contentions either are not properly before this Court or need not be reached in light of our determination.
BRATHWAITE NELSON, J.P., MALTESE, CHRISTOPHER and LOVE, JJ., concur.